Using Exculpatory Clauses Liberally
Broad exculpatory clauses can evidence a testator's intent to forgive a personal representative or Trustee, effectively affording that individual a greater spectrum of conduct before reaching the point where their conduct becomes misconduct. But these provisions can often be looked at quite closely, and for good reason. Was it really the client's intent to be so forgiving, or did that broad language come at the suggestion of the attorney who might end up representing the personal representative in the future? Broad exculpatory provisions are problematic, and experienced estate planners should do everything possible to narrow the permissible conduct of these individuals where appropriate.
Respected authorities will always disagree on the usefulness of audio or visual recordings of Will executions. They are, in almost every case, a very sharp double-edged sword. If the estate planner rarely videotapes an execution, but determines that one should be executed to quash any would-be challenge, the sharp litigator will highlight that the occurrence is rare, and that something must have been off in order to cause the concern in the first place. Add to this that lawyers are hardly movie producers, and you can wind up with a production that makes a client look ill, confused, reliant on others for answers or even potentially incapacitated. Take caution in the message that you send when electing to record an event like this.
What role should the planning attorney take when counseling a husband and wife that have children of their own? Husband's Will might benefit his wife then his children, while the Wife's Will might benefit her husband and then her own children. The potential for conflicts rises significantly, as these sorts of blended families can commonly result in divisiveness and distrust at the death of the first spouse. Experienced estate planners will thoroughly outline their role as counsel to both husband and wife, clear up potential conflicts before they arise, and keep everyone moving toward a set of objectives free of the cloud of question or doubt.
Assuming that Forfeiture Clauses Fail
In recent years, Texas statutes have been enacted to confirm what has essentially been true for quite some time. Will contestants can forfeit any benefit they might have gained under the Will if they are unsuccessful in their contest. However, challenges brought forward in "good faith" and for "just cause" can avoid triggering forfeiture provisions. Provisions like this are intended to deter contests. Like any other deterrent, there should be a meaningful consequence. A person who is not named as a beneficiary under the Will has no disincentive in challenging the document whatsoever. With nothing to lose, they'll move forward with vigor. But a document that includes something relatively substantial to the would-be contestant gives that contestant reason to pause and carefully consider the potential outcome of their actions. Carefully drafted forfeiture provisions are simple ones that work.